Verdict against the office for the protection of the constitution: life imprisonment for surveillance

The Office for the Protection of the Constitution spied on human rights activist Rolf Gossner for 38 years. A court has now found the procedure to be unlawful.

Rolf Gossner in 2013 at the event "Protection of the Constitution – Practice Beyond the Laws?" Photo: dpa

The 38-year spying on Bremen human rights activist Rolf Gossner by the Office for the Protection of the Constitution was illegal and disproportionate from the start. This assessment, which the Cologne Administrative Court already came to seven years ago, was confirmed on Tuesday evening by the 16th Senate of the Higher Administrative Court (OVG) in Munster in the appeal hearing. It certified thereby again the Federal Office for the Protection of the Constitution (BfV) to have hurt durably the most distinguished personal rights, which the Basic Law guarantees everyone.

According to the OVG Munster, Gossner is also entitled to these rights. The publicist, political scientist and lawyer was elected deputy judge at the Bremen State Court in 2007. With reference not only to the NSU’s bloody deeds, he had pointed out in a personal statement that the domestic intelligence service had already "itself become a danger to the constitution, the rule of law and democracy" on several occasions due to its "involvement in neo-Nazi scenes and parties". His own harsh criticism, which had been discredited in the proceedings as "defamation" and "disparagement", had unfortunately been confirmed and had even been "exceeded by reality".

The Federal Office for the Protection of the Constitution had been collecting informer reports on Gossner since 1970. This longest-known surveillance of an individual in the history of the Federal Republic of Germany ended in 2008 with as little cause as it had begun: At that time, it had been enough for Gossner to serve on the executive board of the Social Democratic Students’ Association for a few months without being a member, but in 2008 the Cologne constitutional protectors decided that the threat situation had changed. The reason for this change in the comparatively uneventful year remains a mystery.

The suspicion is, however, that it seemed opportune to remove a few hardships after Gossner had filed a lawsuit two years earlier. It is possible that in the threatened proceedings one at least did not want to be accused of continuing to spy on someone who had been honored by the President of the Federal Constitutional Court, Jutta Limbach, with the Theodor Heuss Medal for his commitment as editor of the "Fundamental Rights Report. Years earlier, as a research assistant to the Green Party in Lower Saxony, he had helped the Schroder government draft a state constitutional protection law that conformed to the Basic Law.

The secret service, however, assessed his activities quite differently: Gossner had pursued the goal of "abolishing essential core elements of the constitutional order," according to the pleadings from the renowned law firm Redeker Sellner Dahs, with which the Federal Republic had taken up arms against the publicist. The fact that he was not a member of the DKP or any other extremist organization made him all the more suspicious. It was considered particularly serious in Cologne that Gossner had been a member of the editorial board of the magazine "Secret", which was critical of the secret service and the police. The BfV claims that the magazine was infiltrated by the Stasi. This claim has not really been substantiated to this day. Gossner had done all this in order to replace the free democratic basic order with a socialist one. In order to speed up the process, he had first tried to eliminate the Office for the Protection of the Constitution, this bulwark of democracy, with the help of the quarterly.

Revision admitted

Yes, that sounds confused and difficult to comprehend: "A denunciatory enemy and distorted image in which I do not recognize myself – and before which I myself would be frightened," Gossner has called this portrayal of himself.

"A denunciatory enemy and distorted image in which I do not recognize myself – and before which I myself would be frightened".

The Munster judges were also not convinced by the argumentation of the federal side: They lacked "concrete indications of anti-constitutional endeavors" that alone could have justified surveillance of Gossner. The fact that the encroachments on fundamental rights associated with the surveillance had also been "disproportionate" is almost a foregone conclusion from the nullity of its cause.

The fact that the Senate has allowed an appeal to the Federal Administrative Court because of the fundamental importance is perhaps a downer of the decision: So after twelve years, the proceedings are still not over, and should it one day end up at the Federal Constitutional Court, "then I’ll be 90 when it comes to trial," said Gossner in a break to the taz. It can be assumed that the federal government will also exhaust this possibility. It seems far too important to the BfV that it has the right to spy on innocent citizens as it pleases, without any reason or results.

The appeal in the Gossner case already seems to have been motivated by such considerations: Silke Willems, the representative of the authority, attended the meeting in silence and, when asked by the taz, "preferred not to comment on it". Gossner suspects that it was actually a fight for the previous practice. "They wouldn’t be allowed," he says, the fundamental significance of the lawsuit he filed in 2006, "to continue as before if this ends up being legally binding."

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